When can your child fully decide to live with their parent in divorce.

For parents going through a divorce or attempting to modify a custody order, this is a question that is often on their minds. In Minnesota, this question does not always have a simple answer. Under state law, custody is determined based on what is in the “best interests” of the child, and there are a number of factors that the courts will take into consideration in deciding this. The child’s preference is only one consideration that is generally taken into account. Minnesota law states that family law judges may consider the “reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.” The law, however, does not specify what it means for a child to “be of sufficient age.”

As a general rule, judges will give more weight to the preference of an older child—both in determining an initial custody award and in considering a modification of an existing order. Courts in other states have reasoned that children fall into one of three groups:

  1. Those under six years of age who are "children of tender years" and who often cannot articulate an intelligent opinion about their custody;
  2. Children between six and fourteen who are generally able to express a preference in terms of custody arrangements and can explain their reasons; and
  3. Those fourteen years of age and older who assume many of the qualities of an adult and who will decide where they want to live regardless of what a court says.

In Minnesota, the courts have not adopted these categories, but several cases which have been handed down by the Minnesota Court of Appeals seem to come to similar conclusions.

Ross v. Ross

In the Minnesota case of Ross v. Ross, a mother was originally granted custody of her son, and a short time later, when the son had reached the age of 16, his father petitioned the court to modify the order seeking physical custody of his son. In that case, the father presented affidavits showing that the son wanted to live with him and had already in fact moved in with him. There were also reports from a psychologist that indicated that the son was very distressed by his mother's continuous anger and that this had affected his behavior in school. In addition, the reports noted that the child's discipline and behavior problems in school had escalated after the parents’ divorce and that in the two weeks the son had been living with his father his school performance improved significantly.

The court in the Ross v. Ross case found that the age of the child is a “critical factor” to be taken into consideration in determining custody. The court stated that the “predominant importance of the choice of the older child is a well settled part of Minnesota law, even as a consideration in placing a child with a nonparent.” The court referenced other Minnesota cases—one in which the preference of 12½-year-old child was given great weight in maintaining her custody with her aunt and uncle, and another in which the court found that the friction that would result by compelling a 15-year-old to live with his father justified allowing him to remain in the home of his foster parents.

In the Ross v. Ross case, the mother argued that the son only wanted to live with the father because the father was “more lenient.” Interestingly, the court considered it to be vain and useless to order children who are approaching the age of majority to live with a parent with whom they do not wish to live. This is true, the court indicated, even in cases in which the child’s decision is foolish or wrongly influenced by the noncustodial parent. The court found that these factors do “very little to diminish the weight of the child’s preference.”

Appelhof v. Haack

In another similar Minnesota case decided by the Minnesota Court of Appeals, the parents of a one-year-old child were divorced, and the mother was granted physical custody. The father requested the court, on several occasions, to reconsider the custody order. Over the years, however, he met with little success. More recently, the father once again petitioned the court to modify the custody order. The child, then 13 years old, expressed her desire to live with her father.

The court granted custody to the father on the basis that it was in the daughter’s best interests. The court found that the daughter’s desire “to live with her father was more than a ‘passing fancy’; it was a mature, fully considered choice.” The court found that ignoring the daughter’s “repeatedly expressed, mature desire to live with her father would adversely affect her mental and emotional health and development.” The court stated that:

Where the child is a teenager, as here, Minnesota courts have heavily weighed the child's preference in determining emotional endangerment. A line of decisions from the early 20th century even allowed teenagers to remain with the nonparents with whom they resided, noting the impracticality of ordering a teenager to live where she does not want to live and the damage to a child's psyche from having her preference overruled.

The court also noted that the daughter “expressed a strong preference to live with her father, and articulated that she received ‘more meaningful communication’ and ‘a feeling of really belonging and being appreciated as a member of a family unit’ in her father's household.”

The bottom line is that there is no particular age at which a child can decide to live with one parent or another, however, the older the child is, the more heavily the court will weigh the child's preference against other factors.